Delhi

StateCommission

CC/757/2018

SMT. NIRMALA GOEL - Complainant(s)

Versus

M/S PARSVNATH DEVELOPERS LTD. & ANR. - Opp.Party(s)

VIKAS GUPTA

27 Jun 2019

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments : 27.06.2019

Date of Decision :13.08.2019

COMPLAINT NO.757/2018

In the matter of:

 

Smt. Nirmala Goel,

R/o. H.No.34, Suvidha Kunj,

Pitam Pura, Delhi-110034. ………Complainant

 

Versus

 

1. M/s. Parsvnath Developers Ltd.,

Through its Chairman

Shri Pradeep Kumar Jain.

 

2. Shri Pardeep Kumar Jain,

Chairman of M/s. Parsvnath

Developers Ltd.

 

Both to be served at Corp. Office:

6.  

19, B.K. Road, New Delhi-110001.

 

Also at:

Parsvnath Metro Tower,

Near Shahdara Metro Station,

Shahdara, Delhi-110032.……..Opposite Parties

 

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

2.      To be referred to the reporter or not?                                                                                                           Yes/No

 

Shri O.P. Gupta, Member (Judicial)

 

 

JUDGEMENT

 

1. Initially this complaint was filed in District Forum New Delhi from where it was returned vide order dated 09.05.18 due to lack of pecuniary jurisdiction. This happened so due to three Member Bench decision of NC in Amrish Kumar Shukla.
2. The case of the complainant is that OP gave advertisement in newspaper in the year 2004 that it had future project at Parsvnath Near Tau  Devi Lal Park, Phase-II, Sonipat, Haryana.  It fixed hoarding. At the  time of booking of plot it gave assurances that it would construct and hand over possession within  stipulated period of 36 months. It promised that it had taken all necessary and statutory approval from the competent authorities and there would not be any kind of hindrance and obstruction in its way in developing and constructing residential plots.
3. Shri Yogender Kumar booked a plot of 400 sq. yds  in the year 2004. He paid Rs.1,75,000/- against receipt dated 08.09.04. Later on he transferred the booking in the name of Shri Jag Mohan Suri and he paid Rs.3,80,000/- against receipt dated 07.02.06 who in turn transferred  the same in the name of present complainant vide endorsement dated 03.11.07 and 08.11.07 and OP received administrative charges of Rs.37,500/-.
4. The complainant made entire payment to Shri Jagmohan Suri. It was assured that possession of the plot would be handed over and delivered within the period of six months. Half of the amount had been taken by the OP. The complainant  visited the site and found that OP had not carried out any single activity at the project. Even infrastructure had not been developed.. The complainant was ready and willing to make balance payment to OP against possession of the flat. He served legal notice dated 11.05.15 calling upon the OP to hand over  possession of the plot and  execute the regular sale deed within 7 days. In the alternative he claimed sum of Rs.5,55,000/- with interest @24% per annum from date of booking till realisation. Hence this complaint for directing the OP to accept balance payment as per payment schedule and hand over physical possession of the plot, direct OP to execute regular sale deed. In the alternative he has prayed for directions to refund Rs.5,55,000/- with interest @24% per annum from the date of booking till realisation, refund Rs.37,500/- with interest at the same rate which was administrative/ transfer charges. He has also sought directions to the OP to produce sanctioned plan, approval, lay  out plan, other necessary permissions for selling plot under future project, direct OP to pay Rs.1,00,000/- for mental torture, pain, agony, suffering and set back, Rs.25,000/- as cost of litigation.
5. OP filed WS stating that in Ganesh Lal vs. Shyam Hon’ble Supreme Court held that  jurisdiction of Consumer Forum is limited to deficiency in goods and services.  Failure to hand over possession of land simpliciter  can not be brought within the jurisdiction of the Consumer Forum. Any dispute in regard to sale of plot can not be covered under Consumers Protection Act. Complainant is resident of Delhi and booking by him indicates that he was an investor. The complainant gave an affidavit cum undertaking and indemnity bond. The said indemnity  bond is annexure OP-3 at page 19-23. As per clause 7 of the undertaking an indemnity, if the plot is not allotted, customer has to accept refund with simple interest @9% per annum from the date of his nomination. The complaint involves complicated question of facts and law which need to be proved by leading details, oral as well as documentary evidence. Proceedings under Consumer Protection Act are summary in nature. On merits the OP took the same defence.
6. The complainant filed rejoinder and his own affidavit in evidence.
7. On the other hand the OP has filed affidavit of Shri Madan Lal Dogra, Dy. General Manager.
8. Both the parties have filed the written arguments. The complainant has relied upon decision of Hon’ble Supreme Court in Chief Administrator Huda vs. Shakuntla Devi I (2017) CPJ 3 SC, decision of NC in R.P. No.1145/13 titled as M/s. Unitech Ltd. vs. Dr. Abbha Malik decided on 12.05.15, decision of NC in CC No.232/14 titled as Puneet Malhotra vs. Parsvnath Developers decided on 29.01.15 and decision in Lucknow Development Authority vs. M. K. Gupta decided on 05.11.93.  It also relied upon the following decisions of NC:-

1. M/s. Kiran Real Estates & Constructions vs. Nagalla Anand Sai Sudhakar I (1999) CPJ 47.
2. Veena Khanna vs. Ansal Properties & Industry Ltd. III (2007) CPJ 185 (NC).
3. Ghaziabad Authority vs. Col. R.N. Kalra II (2007) CPJ 267 (NC).
4. Atul Nayar vs. IDEB Grand reality Pvt. Ltd. I (2017) CPJ 107 (NC).

9. In written arguments the OP took the same plea  as in WS. It also relied upon decision of Hon’ble Supreme Court in Synco Industries vs. State Bank of Bikaner and Jaipur AIR 2002 (SC) 568 in support of the plea that cases involving complex and complicated question of facts and law can not be decided in summary proceedings under Consumer Protection Act.
10. I have gone through the material on record and heard the arguments. The counsel for the OP submitted that it is a case of second purchaser in as much as the complainant did not book the plot directly with the OP. Rather he is a transferee from the initial purchaser. There is a distinction in case of initial purchaser and a subsequent purchaser. The subsequent purchaser was well aware of delay in development and he entered into an agreement with open eyes. The difference was explained by NC in case of Satish Pandey vs. Unitech Ltd. III (2015) CPJ 440. This is more so when complainant himself has given an indemnity bond that in  case the plot is not allotted to him, he would seek refund with interest @9% per annum from the date of transfer till refund..
11. In view of the above discussion the OP-1 is directed to refund  Rs.5,55,000/- with interest @9% per annum from 08.11.07 / the date of endorsement in the name of complainant till the date of refund.
12. Copy of the order be sent to both the parties free of cost.
13. File be consigned to record room.

 

 

(O.P. GUPTA)                                                               

MEMBER (JUDICIAL)